Subpart G--Appeals Process

Sec. 10.600 How can final decisions of OWCP be reviewed?

There are three methods for reviewing a formal decision of the OWCP (Secs. 10.125-10.127 discuss how decisions are
made). These methods are: reconsideration by the district office; a hearing before an OWCP hearing representative; and appeal
to the Employees' Compensation Appeals Board (ECAB). For each method there are time limitations and other restrictions
which may apply, and not all options are available for all decisions, so the employee should consult the requirements set forth
below. Further rules governing appeals to the ECAB are found at part 501 of this title.

Reconsiderations and Reviews by the Director

Sec. 10.605 What is reconsideration?

The FECA provides that the Director may review an award for or against compensation upon application by an employee (or
his or her representative) who receives an adverse decision. The employee shall exercise this right through a request to the
district office. The request, along with the supporting statements and evidence, is called the ``application for reconsideration.''

Sec. 10.606 How does a claimant request reconsideration?

(a) An employee (or representative) seeking reconsideration should send the application for reconsideration to the address as
instructed by OWCP in the final decision.

(b) The application for reconsideration, including all supporting documents, must:

(1) Be submitted in writing;

(2) Set forth arguments and contain evidence that either:

(i) Shows that OWCP erroneously applied or interpreted a specific point of law;

(ii) Advances a relevant legal argument not previously considered by OWCP; or

(iii) Constitutes relevant and pertinent new evidence not previously considered by OWCP.

Sec. 10.607 What is the time limit for requesting reconsideration?

(a) An application for reconsideration must be sent within one year of the date of the OWCP decision for which review is
sought. If submitted by mail, the application will be deemed timely if postmarked by the U.S. Postal Service within the time
period allowed. If there is no such postmark, or it is not legible, other evidence such as (but not limited to) certified mail
receipts, certificate of service, and affidavits, may be used to establish the mailing date.

(b) OWCP will consider an untimely application for reconsideration only if the application demonstrates clear evidence of error
on the part of OWCP in its most recent merit decision. The application must establish, on its face, that such decision was
erroneous.

(c) The year in which a claimant has to timely request reconsideration shall not include any period subsequent to an OWCP
decision for which the claimant can establish through probative medical evidence that he or she is unable to communicate in any
way and that his or her testimony is necessary in order to obtain modification of the decision.

Sec. 10.608 How does OWCP decide whether to grant or deny the request for reconsideration?

(a) A timely request for reconsideration may be granted if OWCP determines that the employee has presented evidence and/or
argument that meets at least one of the standards described in Sec. 10.606(b)(2). If reconsideration is granted, the case is
reopened and the case is reviewed on its merits (see Sec. 10.609).

(b) Where the request is timely but fails to meet at least one of the standards described in Sec. 10.606(b)(2), or where the
request is untimely and fails to present any clear evidence of error, OWCP will deny the application for reconsideration without
reopening the case for a review on the merits. A decision denying an application for reconsideration cannot be the subject of
another application for reconsideration. The only review for this type of non-merit decision is an appeal to the ECAB (see Sec.
10.625), and OWCP will not entertain a request for reconsideration or a hearing on this decision denying reconsideration.

Sec. 10.609 How does OWCP decide whether new evidence requires modification of the prior decision?

When application for reconsideration is granted, OWCP will review the decision for which reconsideration is sought on the
merits and determine whether the new evidence or argument requires modification of the prior decision.

(a) After OWCP decides to grant reconsideration, but before undertaking the review, OWCP will send a copy of the
reconsideration application to the employer, which will have 20 days from the date sent to comment or submit relevant
documents. OWCP will provide any such comments to the employee, who will have 20 days from the date the comments are
sent to him or her within which to comment. If no comments are received from the employer, OWCP will proceed with the
merit review of the case.

(b) A claims examiner who did not participate in making the contested decision will conduct the merit review of the claim.
When all evidence has been reviewed, OWCP will issue a new merit decision, based on all the evidence in the record. A copy
of the decision will be provided to the agency.

(c) An employee dissatisfied with this new merit decision may again request reconsideration under this subpart or appeal to the
ECAB. An employee may not request a hearing on this decision.

Sec. 10.610 What is a review by the Director?

The FECA specifies that an award for or against payment of compensation may be reviewed at any time on the Director's own
motion. Such review may be made without regard to whether there is new evidence or information. If the Director determines
that a review of the award is warranted (including, but not limited to circumstances indicating a mistake of fact or law or
changed conditions), the Director (at any time and on the basis of existing evidence) may modify, rescind, decrease or increase
compensation previously awarded, or award compensation previously denied. A review on the Director's own motion is not
subject to a request or petition and none shall be entertained.

(a) The decision whether or not to review an award under this section is solely within the discretion of the Director. The
Director's exercise of this discretion is not subject to review by the ECAB, nor can it be the subject of a reconsideration or
hearing request.

(b) Where the Director reviews an award on his or her own motion, any resulting decision is subject as appropriate to
reconsideration, a hearing and/or appeal to the ECAB. Jurisdiction on review or on appeal to ECAB is limited to a review of
the merits of the resulting decision. The Director's determination to review the award is not reviewable.

Hearings

Sec. 10.615 What is a hearing?

A hearing is a review of an adverse decision by a hearing representative. Initially, the claimant can choose between two formats:
An oral hearing or a review of the written record. At the discretion of the hearing representative, an oral hearing may be
conducted by telephone or teleconference. In addition to the evidence of record, the employee may submit new evidence to the
hearing representative.

Sec. 10.616 How does a claimant obtain a hearing?

(a) A claimant, injured on or after July 4, 1966, who has received a final adverse decision by the district office may obtain a
hearing by writing to the address specified in the decision. The hearing request must be sent within 30 days (as determined by
postmark or other carrier's date marking) of the date of the decision for which a hearing is sought. The claimant must not have
previously submitted a reconsideration request (whether or not it was granted) on the same decision.

(b) The claimant may specify the type of hearing desired when making the original hearing request. If the request does not
specify a format, OWCP will schedule an oral hearing. The claimant can request a change in the format of the hearing by
making a written request to the Branch of Hearings and Review. OWCP will grant a request received by the Branch of
Hearings and Review within 30 days of: The date OWCP acknowledges the initial hearing request, or the date OWCP issues a
notice setting a date for an oral hearing, in cases where the initial request was for, or was treated as a request for, an oral
hearing. A request received after those dates will be subject to OWCP's discretion. The decision to grant or deny a change of
format is not reviewable.

Sec. 10.617 How is an oral hearing conducted?

(a) The hearing representative retains complete discretion to set the time and place of the hearing, including the amount of time
allotted for the hearing, considering the issues to be resolved.

(b) Unless otherwise directed in writing by the claimant, the hearing representative will mail a notice of the time and place of the
oral hearing to the claimant and any representative at least 30 days before the scheduled date. The employer will also be mailed
a notice at least 30 days before the scheduled date.

(c) The hearing is an informal process, and the hearing representative is not bound by common law or statutory rules of
evidence, by technical or formal rules of procedure or by section 5 of the Administrative Procedure Act, but the hearing
representative may conduct the hearing in such manner as to best ascertain the rights of the claimant. During the hearing
process, the claimant may state his or her arguments and present new written evidence in support of the claim.

(d) Testimony at oral hearings is recorded, then transcribed and placed in the record. Oral testimony shall be made under oath.

(e) OWCP will furnish a transcript of the oral hearing to the claimant and the employer, who have 20 days from the date it is
sent to comment. Any comments received from the employer shall be sent to the claimant, who will be given an additional 20
days to comment from the date OWCP sends any agency comments.

(f) The hearing remains open for the submittal of additional evidence until 30 days after the hearing is held, unless the hearing
representative, in his or her sole discretion, grants an extension. Only one such extension may be granted. A copy of the
decision will be mailed to the claimant's last known address, to any representative, and to the employer.

(g) The hearing representative determines the conduct of the oral hearing and may terminate the hearing at any time he or she
determines that all relevant evidence has been obtained, or because of misbehavior on the part of the claimant and/or
representative at or near the place of the oral presentation.

Sec. 10.618 How is a review of the written record conducted?

(a) The hearing representative will review the official record and any additional evidence submitted by the claimant and by the
agency. The hearing representative may also conduct whatever investigation is deemed necessary. New evidence and
arguments are to be submitted at any time up to the time specified by OWCP, but they should be submitted as soon as possible
to avoid delaying the hearing process.

(b) The claimant should submit, with his or her application for review, all evidence or argument that he or she wants to present
to the hearing representative. A copy of all pertinent material will be sent to the employer, which will have 20 days from the
date it is sent to comment. (Medical evidence is not considered ``pertinent'' for review and comment by the agency, and it will
therefore not be furnished to the agency. OWCP has sole responsibility for evaluating medical evidence.) The employer shall
send any comments to the claimant, who will have 20 more days from the date of the agency's certificate of service to
comment.

Sec. 10.619 May subpoenas be issued for witnesses and documents?

A claimant may request a subpoena, but the decision to grant or deny such a request is within the discretion of the hearing
representative. The hearing representative may issue subpoenas for the attendance and testimony of witnesses, and for the
production of books, records, correspondence, papers or other relevant documents. Subpoenas are issued for documents only
if they are relevant and cannot be obtained by other means, and for witnesses only where oral testimony is the best way to
ascertain the facts.

(a) A claimant may request a subpoena only as part of the hearings process, and no subpoena will be issued under any other
part of the claims process. To request a subpoena, the requestor must:

(1) Submit the request in writing and send it to the hearing representative as early as possible but no later than 60 days (as
evidenced by postmark, electronic marker or other objective date mark) after the date of the original hearing request.

(2) Explain why the testimony or evidence is directly relevant to the issues at hand, and a subpoena is the best method or
opportunity to obtain such evidence because there are no other means by which the documents or testimony could have been
obtained.

(b) No subpoena will be issued for attendance of employees of OWCP acting in their official capacities as decision-makers or
policy administrators. For hearings taking the form of a review of the written record, no subpoena for the appearance of
witnesses will be considered.

(c) The hearing representative issues the subpoena under his or her own name. It may be served in person or by certified mail,
return receipt requested, addressed to the person to be served at his or her last known principal place of business or residence.
A decision to deny a subpoena can only be appealed as part of an appeal of any adverse decision which results from the
hearing.

Sec. 10.620 Who pays the costs associated with subpoenas?

(a) Witnesses who are not employees or former employees of the Federal Government shall be paid the same fees and mileage
as paid for like services in the District Court of the United States where the subpoena is returnable, except that expert
witnesses shall be paid a fee not to exceed the local customary fee for such services.

(b) Where OWCP asked that the witness submit evidence into the case record or asked that the witness attend, OWCP shall
pay the fees and mileage. Where the claimant requested the subpoena, and where the witness submitted evidence into the
record at the request of the claimant, the claimant shall pay the fees and mileage.

Sec. 10.621 What is the employer's role when an oral hearing has been requested?

(a) The employer may send one (or more, where appropriate) representative(s) to observe the proceeding, but the agency
representative cannot give testimony or argument or otherwise participate in the hearing, except where the claimant or the
hearing representative specifically asks the agency representative to testify.

(b) The hearing representative may deny a request by the claimant that the agency representative testify where the claimant
cannot show that the testimony would be relevant or where the agency representative does not have the appropriate level of
knowledge to provide such evidence at the hearing. The employer may also comment on the hearing transcript, as described in
Sec. 10.617(e).

Sec. 10.622 May a claimant withdraw a request for or postpone a hearing?

(a) The claimant and/or representative may withdraw the hearing request at any time up to and including the day the hearing is
held, or the decision issued. Withdrawing the hearing request means the record is returned to the jurisdiction of the district
office and no further requests for a hearing on the underlying decision will be considered.

(b) OWCP will entertain any reasonable request for scheduling the oral hearing, but such requests should be made at the time
of the original application for hearing. Scheduling is at the sole discretion of the hearing representative, and is not reviewable.
Once the oral hearing is scheduled and OWCP has mailed appropriate written notice to the claimant, the oral hearing cannot be
postponed at the claimant's request for any reason except those stated in paragraph (c) of this section, unless the hearing
representative can reschedule the hearing on the same docket (that is, during the same hearing trip). When the request to
postpone a scheduled hearing does not meet the test of paragraph (c) of this section and cannot be accommodated on the
docket, no further opportunity for an oral hearing will be provided. Instead, the hearing will take the form of a review of the
written record and a decision issued accordingly. In the alternative, a teleconference may be substituted for the oral hearing at
the discretion of the hearing representative.

(c) Where the claimant is hospitalized for a reason which is not elective, or where the death of the claimant's parent, spouse, or
child prevents attendance at the hearing, a postponement may be granted upon proper documentation.

Review by the Employees' Compensation Appeals Board (ECAB)

Sec. 10.625 What kinds of decisions may be appealed?

Only final decisions of OWCP may be appealed to the ECAB. However, certain types of final decisions, described in this part
as not subject to further review, cannot be appealed to the ECAB. Decisions that are not appealable to the ECAB include:
Decisions concerning the amounts payable for medical services, decisions concerning exclusion and reinstatement of medical
providers, decisions by the Director to review an award on his or her own motion, and denials of subpoenas independent of the
appeal of the underlying decision. In appeals before the ECAB, attorneys from the Office of the Solicitor of Labor shall
represent OWCP.

Sec. 10.626 Who has jurisdiction of cases on appeal to the ECAB?

While a case is on appeal to the ECAB, OWCP has no jurisdiction over the claim with respect to issues which directly relate to
the issue or issues on appeal. The OWCP continues to administer the claim and retains jurisdiction over issues unrelated to the
issue or issues on appeal and issues which arise after the appeal as a result of ongoing administration of the case. Such issues
would include, for example, the ability to terminate benefits where an individual returns to work while an appeal is pending at
the ECAB.